State v. Superior Court for Snohomish County

• Decision Date: 06 March 1925
• Docket Number: 19016.
• Citation: 233 P. 651,133 Wash. 308
• Court: Washington Supreme Court
• Parties: STATE ex rel. PUGET SOUND POWER & LIGHT CO. v. SUPERIOR COURT FOR SNOHOMISH COUNTY et al.

233 P. 651

133 Wash. 308

STATE ex rel. PUGET SOUND POWER & LIGHT CO. v. SUPERIOR COURT FOR SNOHOMISH COUNTY et al.

No. 19016.

Supreme Court of Washington, En Banc.

March 6, 1925

Appeal from Superior Court, Snohomish County; Bell, Judge.

Writ of review by the State of Washington, on the relation of the Puget Sound Power & Light Company, against the Superior Court for Snohomish County and Ralph C. Bell, as Judge thereof, to review an order denying relator's application for adjudication of public use and necessity for condemnation of land. Order affirmed.

James B. Howe, of Seattle, J. A. Coleman, of Everett, and Hugh A Tait and Edgar L. Crider, both of Seattle, for relator.

G. W Hinman, of Arlington, for respondents.

MITCHELL J.

This action was instituted as a condemnation proceeding upon the petition of the Puget Sound Power & Light Company, a corporation. The purposes for which the corporation is organized are extensive and are both public and private. For a number of years it has been and is wtill engaged in carrying out those purposes. When this proceeding was commenced the corporation was engaged in constructing a hydro-electric plant on Baker river, to produce additional electric power, estimated at 18,000 K. W. In order to transmit this power, it is necessary to construct and use a transmission line or lines across the lands of Floyd Sill and others, described in the petition. Being unable to agree with the landowners on the price to be paid for an easement for such transmission line, the corporation seeks to acquire it by condemnation. On hearing the application for an order adjudicating that the use for which the plaintiff sought to acquire such easement was a public use, and that there was public necessity therefor, the superior court made the following findings of fact conclusions of law and order, viz.:

'This cause came on regularly for hearing on the 15th day of September, 1924, upon the application of the petitioner for an order of adjudication of public use and necessity, the petitioner and the respondents appearing by their respective attorneys of record. Evidence was adduced, and certain admissions were made and stipulations entered into upon the trial, from which the court finds and determines that the petitioner is a corporation authorized to do business in the state of Washington, and has paid it annual license fee last due to said state, and is empowered by its articles of incorporation to engage in and is actually engaged in, among other things, the business of generating and distributing electric power and energy in and throughout Snohomish, Whatcom, Skagit, King, and Pierce counties, and elsewhere throughout the State of Washington, for the operation of interurban railways and to furnish light for public buildings and places, and to many persons for use in their homes, and is also engaged in supplying such power to persons who use it for manufacturing purposes, and that all of the original capital stock of the petitioner has been subscribed and paid; that petitioner now has available for all purposes about 143,000 K. W.; that it is now engaged in the construction of a water power generating plant on the Baker river, wherein it proposes to produce electric current to be used for public purposes to the extent that there shall be demand for such use; that it sells, and proposes to sell, current for manufacturing purposes, to other concerns and for other private uses; that it operates interurban lines, furnishes light for public buildings and places, and to many persons for use in their homes; that it seeks the rights here sought to be appropriated by it in order that it may transmit over the lines to be built by it, and thus render available for distribution and use the electric current to be by it generated at said Baker river plant; that, at the peak hour, or time of highest demand for public uses upon its now available current, it has current actually devoted to private uses to the extent of from 25 per cent. to 30 per cent. of its total supply; that at the hour of minimum demand for its public uses, it now has available for private uses 50 per cent. to 60 per cent. of its total current; that it actually has at the present time a surplus over all demand, both for public and private uses, of approximately 23,000 K. W.; that the transmission lines for which the easement is sought to be condemned herein would be used to transmit power for use in operating street railways, interurban lines, street lighting, and lighting in homes under franchise of petitioner, and also for operating manufacturing plants, but such transmission lines would not be constructed in any other manner for the transmission of all of such power than they would be constructed if wholly devoted to transmitting power used wholly for public uses; that if the rights sought to be condemned are for a public use within the meaning of the Constitution and the law, necessity exists for the acquisition of such rights.

'In view of the foregoing, the court concludes that the contemplated use of the rights sought to be condemned herein is not a public use, and for that reason:

'It is ordered, adjudged, and decreed that the petitioner's said application be and the same is denied, to which order the petitioner excepts, and its exception is allowed.'

The petitioner made no request for any finding that was refused, nor was any exception taken to any finding that was made. The petitioner filed written exceptions to the conclusion of law entered in the case, and by writ of review has brought the case here for our determination. It may be well to state that we do not understand by the allegations of the petition or the findings of fact, or both, that the plaintiff has heretofore availed itself of, or is now proceeding under, the provisions of the act of March 13, 1907 (Laws 1907, p. 349, Rem. Comp. Stat., § 5432), relating to corporations organized for the purpose of generating and transmitting electrical power for the operation of railroads and railways or for municipal lighting, of which, in the case of State ex rel. Dominick v. Superior Court, 52 Wash. 196, 100 P. 317, 21 L. R. A. (N. S.) 448, we said:

'It is questionable whether the Legislature intended by this act to merely enlarge or extend the uses that might be made of electricity generated for public purposes and not needed therefor, or whether it intended to enlarge the power of eminent domain itself. It the former was intended, the act would seem to be entirely free from constitutional objection, while in the latter case the validity of the act would be very questionable, under previous rulings of this court.'

In eminent domain proceedings on the petition of a corporation such as this one, section 925, Rem. Comp. Stat. requires that three things be satisfactorily proven to the trial court, in the following order, viz.: (1) That the contemplated use for which the property sought to be appropriated is really a public use; (2) that the public interest requires the prosecution of such enterprise; and (3) that the property sought to be appropriated is required and necessary for the purposes of such enterprise. The part of section 16, art. 1, of the state Constitution, that covers this subject deals only with the first of those three things. It says:

'Whenever an attempt is made to take private property for a use alleged to be public, the question whether the contemplated use be really public shall be a judicial question, and determined as such, without regard to any legislative assertion that the use is public.'

Thus by both the Constitution and the statute the primary question is that of public use. In this case the trial judge did not find that there was a necessity for the taking of the property but the finding was 'that if the rights sought to be condemned are for a public use within the meaning of the Constitution and the law,' that then there was necessity for acquiring the property. The language used is somewhat faulty, but evidently it was intended to mean that if the contemplated use of the property sought to be taken was really a public use, that then necessity existed for the acquisition of it, because, immediately following that statement in the findings, the court makes its only conclusion 'that the contemplated use of the rights sought to be condemned herein is not a...